Private Member’s Bill – Thirty-Fourth Amendment to the Constitution (Judicial Appointments) Bill 2013

-   Ken Gaughran

The Minister for Justice and Equality, Alan Shatter TD, has asked me to convey to the House his regret at not being in attendance today. He is in Greece at a meeting of the EU Defence Ministers, a matter of considerable importance in the context of his work as Minister for Defence. Despite three separate personal requests being made of Deputy Ross to facilitate the Minister in attending this important debate of members of this House by agreeing to postpone the debate from the present day to an alternative date that suited the Deputy and which the Chief Whip would have proposed to the House, Deputy Ross would not agree to consider any alternative date for the debate on this important issue. Considering the Minister, at the beginning of December last, announced a public consultation process with regard to formulating proposals to cabinet for reforming this area of the law and invited submissions, I would have expected he would have attached some value to the Minister’s participation in this debate.

Since 1922 we have had a robust and independent judiciary appointed under the current constitutional arrangements, but apparently Deputy Ross and his independent colleagues believe they are the only people who can be trusted to appoint our judges. The Irish judiciary themselves point out that they are ranked as among the most independent in the world. Deputy Ross is not, I assume, saying otherwise in respect of our judges.

Over the past three years, the Minister has been in a position to closely observe how the existing system of judicial appointments is operating and has already formed the view that it is very much of its time. He believes that there are reforms and improvements that can be made to render the system more transparent and accountable while also ensuring that the independence of our judiciary is fully protected and that the judiciary continues to be respected by the Irish people and internationally. Minister Shatter believed that the current system of appointing judges could benefit from a review and as already mentioned initiated a consultation process in December last as a first step in such a review. Indeed, it is important to say that this is the first such open consultation to take place on the statutory provisions applicable to judicial appointments since the Judicial Appointments Advisory Board was established and the Minister is to be commended for that. The Minister believes that it is important that if reforms applicable to this area are to be made that they derive from a considered consultative process, public debate and debates in this House and are not simply magiced up like a rabbit out of a hat without any serious consideration being given to the implications of what is actually proposed.

Deputies will be aware that, under the Constitution, judges are appointed by the President on the advice of the Government. The current process for the appointment of judges in Ireland is set out in sections 12 to 17 of the Courts and Courts Officers Act 1995 which established the Judicial Appointments Advisory Board – known as JAAB. The system provided a structure through which applicants wishing to be considered for judicial appointment could submit written applications to the JAAB providing information on their education, professional qualifications, experience and character. Amendments to the Act in 2002 rendered practising solicitors eligible for appointment to all of our courts. This was a move originally advocated by Minister Shatter some years earlier and as a consequence both solicitors and barristers in legal practice for a designated number of years are eligible for appointments to each of our courts from the District Court, up to, and including, the Supreme Court.

Under the Courts and Courts Officers Act 1995, the Judicial Appointments Advisory Board was established to recommend persons for judicial positions. The board consists of the Chief Justice, the Presidents of the High Court, Circuit Court and District Court, the Attorney General, a practising barrister nominated by the chairman of the Bar Council, a practising solicitor nominated by the president of the Law Society, and no more than three persons appointed by the Minister for Justice, who have knowledge of commerce, finance or administration, or experience as users of the courts. The role of the board is to identify persons, through their own application or the board’s invitation, who are suitably qualified for judicial office.

The current criteria for appointment as a judge are set out in Sections 16 & 17 of the Courts and Courts Officers Act 1995. The Board cannot recommend the name of any person unless in the opinion of the Board the person concerned:
o has displayed in practice as a solicitor or barrister a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned,
o is suitable on grounds of character and temperament,
o is otherwise suitable,
o complies with section 19 of the Act (this section provides that a person who wishes to be considered for appointment to judicial office must undertake in writing their agreement to take such training as may be required by the Chief Justice or the President of the Court to which the person concerned is appointed).

Short-listing is expressly on the basis of competence and merit and not political affiliation. The remit of the Board excludes the offices of Chief Justice and Presidents of the other courts, though in relation to those offices, the government is subject to some limitations in that it is required to ‘have regard first’ to the qualifications and suitability of existing judges. Where the government proposes to appoint a person who is already a judge, the board is not involved.

In addition, the Standards in Public Office Act 2001 requires applicants to certify that their tax affairs are in order. Indeed the Board is prohibited from recommending a person for judicial office unless the person has furnished to the Board a tax clearance certificate and a statutory declaration that their tax affairs are in order.

While the decision as to who should be recommended to the President for appointment to judicial office rests with the Government, it has been the practice of this Government to recommend to the President for appointment only persons who have been recommended as suitable for appointment to judicial office by the Board. The only exception to this is where existing members of the judiciary have been promoted to a higher court – a matter currently excluded from the remit of the Judicial Appointments Advisory Board.

The Fourth Progress Report of the All-Party Oireachtas Committee on the Constitution commented that the “this procedure supersedes the rather informal process pursued by successive governments who were seen to appoint, almost invariably, their own supporters to judicial office. There is no evidence, it should be noted, that such appointees displayed favouritism to the party that appointed them. The new procedures were introduced because there was pressure on governments to ensure transparency in appointments.” It further observes that this “shortlisting procedure in Ireland compares favourably with those in other common law countries because the opportunity has been taken to combine the best features of those systems.”

It should be remembered that the Board is given complete freedom to establish its own processes. Indeed it is given express statutory power to engage in certain functions to assist it in the performance of its critical task and this includes a remit to interview applicants for judicial office. Unfortunately, to date JAAB has not conducted such interviews, but in a recent letter to the Minister, the Chief Justice said it is now considering doing so and the Minister welcomes this proposed initiative. The manner in which the Board fulfils its statutory functions is, of course, the responsibility of the Chief Justice, who chairs the Board, and the other members of the Board. .

The Minister is of the view that the current legislative arrangements under which JAAB operates require change to assist JAAB in the important work it is required to undertake and to provide to the Government more information and greater assistance in the making of judicial appointments. For reasons of political accountability, the Minister is satisfied that the current constitutional arrangements which require that ultimately it is the responsibility of government to recommend to the President those to be appointed to the Judiciary should remain as they are and that they have well served the test of time and are very much in the public interest. This position is both informed and supported by previous work undertaken by the Constitution Review Group and by this House in relation to judicial appointments. I note in particular the comments of the All-Party Oireachtas Committee on the Constitution in its Fourth Progress Report:
“The independence of the judiciary might suggest that the executive should have no discretion in the appointment of judges. But, since the judiciary is an organ of state, it must ultimately be held accountable to the people. As Chief Justice Finlay put it in 1988: At the end of the day somebody must be accountable for the standard and type of judiciary that is appointed. There is a significant amount to be said for making politicians accountable for the standard and type of judiciary that is appointed. They are the ones to whom people in general can turn if bad judicial appointments are being made. If appointments are being made by some body of people who are relatively anonymous then there is no-one to turn to and blame.”

The Constitution Review Group (1996) also considered whether the power to appoint judges should be taken out of the hands of Government and given to the President or some other body. It considered the provisions of the Courts and Court Officers Act 1995 and concluded that it was “desirable that judges continue to be appointed by the Government, the authority directly responsible to the Oireachtas and the people.”

The All-Party Oireachtas Committee on the Constitution concluded: “The committee takes the view that our present system of appointing judges should be retained. It feels that the government has sufficient nonpartisan advice from the Judicial Appointments Advisory Board and that it, as the executive of the elected representatives of the people, should retain the final decision. It is significant that because the judicial candidates are already shortlisted by the board strictly on merit, the government cannot be open to the criticism that it appoints only its own supporters rather than suitably qualified persons when it chooses from the list.

The selection and appointment procedures in Ireland are broadly comparable to those that obtain in the other common law states. In those states the law provides for consultation, either formal or informal, with senior members of the judiciary and the legal profession. Moreover, in all those states it is the executive that appoints the judiciary although there is a deviance from this in the United States at federal level – there, while the executive nominates the judges, each nominee is subject to approval by a simple majority vote in the Senate.

Irrespective of the method of appointing judges, the independence of judges is asserted in Article 35.2 All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”

In this Bill, Deputy Ross proposes that Members of the Oireachtas should choose our judges– but only those unconnected to political parties, ignoring the concept of representative democracy and without regard to expertise or knowledge of the members of the Oireachtas concerned. Moreover he entirely ignored views previously expressed on this subject by members of the Oireachtas following the seminal report of the Constitution Review Group in 1996, and the follow up progress report of a Committee of this House in 1999 – the Fourth Progress Report of the All-Party Oireachtas Committee on the Constitution. Both reports rejected changes of a substantive nature to the judicial selection process under the current constitutional arrangements. He does this also entirely without regard to the composition and structure of comparable judicial selection commissions in neighbouring jurisdictions. He does this entirely without regard to the academic discourse on the question of judicial selection and indeed without regard to the basic tenets of representative democracy and constitutional governance. Deputy Ross is to be commended on a truly unique proposal – it is a model of judicial selection rejected by everyone in the common law world who has considered these matters over the last 60 years.

In every other comparable common law country that has established a Judicial Appointments Commission – Scotland, England and Wales, Northern Ireland, parts of Canada and Israel, such a Commission includes members of the legal profession and judiciary. It is regarded of crucial importance that those with knowledge of the courts and who work in the courts, and who have judicial experience contribute to the judicial selection process. It seems to be Deputy Ross’s view that such knowledge contaminates the judgement of the entire legal profession and the judiciary whose engagement in such process is not to be trusted but rather those who have no such knowledge and no working experience of our courts and judicial system will have some greater insight. No one wants a system that is a self-perpetuating mechanism whereby judges and lawyers exclusively select those appropriate for judicial appointment but it is important that there be substantive input by the legal world in assessing the capacity and suitability of judicial candidates. The Minister believes there are valid questions to be asked as to whether the current composition of JAAB and the lay element is indeed adequate but he does not believe there is any validity in an argument that says the entire legal profession and our entire current judiciary should be excluded from making an input.

Deputy Ross argues that would-be judges come before an Oireachtas Committee to answer questions before they are recommended for appointment. The Constitution Review Group considered this idea in 1996 – whether to introduce a requirement modelled on Article II, section 2 of the US constitution whereby any judicial appointment would be made with the ‘advice and consent’ of one or both Houses of the Oireachtas. In the United States, appointments to the Supreme Court (and to other federal judicial posts) are made by the President on the ‘advice and consent’ of the Senate. This is an instance of the check on the exercise of the executive power which the US system achieves through the separation of powers.

The Review Group concluded that a change along these lines would be inappropriate. “It sees no point in subjecting the decision of the executive to the formal approval of the Dáil, because the Government is already democratically responsible for its decisions to that body…., the contemporary US experience of public hearings and the scrutiny of judicial appointees demonstrates that there might be a tendency for politicians to divide along party lines and thereby further politicise the judicial appointments process. Such a process could create a situation where opposition groups or the media could attempt to discredit a candidate selected by the Government as a means of discrediting the Government. As the US experience has shown, attempts have often been made to ascertain the value systems of candidates prior to appointment. This tendency is not helpful because it proceeds from an assumption that the candidate for judicial office ought to reflect in office some predetermined views considered suitable by those making the appointment. Finally, the intense public scrutiny of candidates is likely to deter the sort of people who would be suitable appointees.”

The approach proposed by Deputy Ross would greatly politicise the process of judicial selection rather than rendering it independent of politics as he spuriously and disingenuously claims. In every other comparable common law country that has established a Judicial Appointments Commission, and indeed those that do not, such as New Zealand and Australia, there is a respect for the need to avoid the politicisation of the judiciary by parliamentary questioning. Only the United States (and a very limited process for federal judges in Canada) are judges required to undergo this process and it is the view, not just of the Minister but of the commentators in the US and the broader academic discourse on the topic, that it is inherently undesirable and at odds with the principles of judicial independence. It distorts behaviour of potential judges. Indeed, there is evidence in the US that this process results in brilliant lawyers refusing to pen articles on matters of controversy, lest they be later used against them for political reasons in a Federal Court conformation hearing.

This is echoed by the All-Party Oireachtas Committee on the Constitution in its Fourth Progress Report published in 1999:
“In the United States where the election of some state judges is made by the people, the judges are made directly accountable to the people on completion of the term for which they are elected. The committee agrees with the view of Constitution Review Group that an election would expressly politicise the appointments procedure. There is of course the further danger that it would interfere with the impartiality of judges. Given that their tenure is dependent on successive election by the electorate, judges could be persuaded to adopt popular stances on matters coming before the courts so as to guarantee re-election.”

For all of these reasons, the government will not accept the Bill put forward by Deputy Ross.

Before introducing any reforms in this area, the Minister was anxious to encourage public debate on statutory changes that should be considered in the public interest with regard to the appointment of members of the judiciary. The Minister requested a review of the process, taking into account how these appointments are now made in other similar jurisdictions, with a view to upholding and strengthening the independence of the judiciary and ensuring that our system and procedures reflect best practice internationally. It was in the belief that a better architecture can be put in place than exists at present, that in December 2013, Minister Shatter initiated a public consultation process. This was to involve not only members of the judiciary and the legal profession generally, but also to engage the broader public who benefit daily in innumerable ways from the protection of an independent judiciary.

Submissions were invited on the judicial appointments process including:
o Eligibility for appointment;
o The need to ensure and protect the principle of judicial independence;
o Promoting equality and diversity; and
o The role of the Judicial Appointments Advisory Board, its membership and its procedures.

The Minister considers that in any discussion about appropriate reform, we should think outside the box. For example, are there ways in which the pool of potential applicants could be expanded? One suggestion perhaps worth considering is whether legal academics should be considered eligible for judicial appointments or should they not? It is considered that some of the most influential members of the U.S. Supreme Court have come from academia. Should this option be considered here? Another question of relevance is should legal academics, amongst others, be eligible for appointment to JAAB and contribute to considering what individuals should be proposed to Government as suitable for judicial appointment.

Should the eligibility criteria for appointment be made more specific and objective? What steps should be considered if we are serious about promoting equality and diversity in the judiciary? Does the application form need to be updated? Does the role and remit of the Judicial Advisory Appointments Board need to be strengthened? Should the composition of the Board of JAAB be revised, in particular, is there the right balance between lay members and representatives of the judiciary and legal professions?

These are broad questions which should inform the public debate on this issue. Many of these questions are addressed in the submissions which have been received from the judiciary, other legal professionals, academics and members of the public. In total, 24 submissions have been received to date and they are now under consideration in the Department of Justice and Equality.

The Bill before us this morning has been published by Deputy Ross without any meaningful consultative process, it ignores all of the international learning in this area, it ignores all reports on the issue published to date in this State, it fails to address in any considered way most of the issues of importance I have outlined, and if implemented would achieve a result the exact opposite of the Deputy’s publically proclaimed principle objective – it would turn judicial appointments into a partisan public political circus rather than ensuring that judges continue to be appointed on merit and that the enormously important constitutional principle of judicial independence is protected. The truth is both in its drafting and in its substance and, in particular, as a proposal to be incorporated into our Constitution, Deputy Ross’s Bill is entirely misconceived and is fundamentally and fatally flawed. It will be opposed by this side of the House.  

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